RAJU Vs. MEENA

JUDGEMENT

(1.) HEARD Mr. A.J. Khan, Advocate for the petitioner and Miss Ruikar, Advocate for the respondents 1 and 2 and Mr. Yengal, Additional Public Prosecutor for the respondent No. 3 State. Rule. Heard forthwith by consent.

(2.) BY this petition, the petitioner has challenged the order of Sessions Court passed by the learned Sessions Judge, Yavatmal on 15.10.1997 in Criminal Revision Application No. 8/1997 filed by the present petitioner challenging the order of tine learned Judicial Magistrate, First Class, Yavatmal dated 13.12.1996 in Misc. Criminal Case No. 164/1993 on 30.12.1996. The admitted facts are that the petitioner is husband of respondent No. 1 and respondent No. 2 is their son. The respondents 1 and 2 had filed an application for maintenance in the Court of Chief Judicial Magistrate, Yavatmal and the petitioner had appeared in that case after the ex -parte order that was passed against him was set aside. The petitioner filed written statement and contended therein inter -alia that mere is a customary divorce between him and respondent No. 1 and as per the said divorce -deed which has been registered the respondent No. 1 has waived her right of future maintenance. The right of maintenance can be legally waived and if the respondent No. 1 has waived her own right, then that question would go to the root of the case. The respondent No. 1 could have denied the fact of having waived the right or could have pleaded circumstances under which the said contents were incorporated in the divorce -deed.

(3.) THE petition is allowed. The order passed by the learned Chief Judicial Magistrate in Misc. Criminal Case No. 164/1993 on 30.12.1996 and the order passed by the learned Sessions Judge, Yavatmal in Criminal Revision No. 8/1997 on 15.10.1997 are hereby quashed. The learned Magistrate is directed to allow the petitioner to produce whatever evidence he can in respect of the said divorce -deedeither a certified copy or calling the original record and thereafter to decide as to whether the respondent No. 1 has in fact waived her right of maintenance and what is the effect of the contents to that effect in the document. The learned Magistrate shall decide the said questions independently and without any reference to any of the observations made in the present order. At the same time to protect the interest of the respondents, the respondents can be given liberty to move the Magistrate forthwith for an order of interim maintenance which application, if filed, shall be disposed of by the learned Magistrate without proceeding further within a period of three weeks from the date of filing and the petitioner shall file his reply to the said application within seven days of the filing. Even if the petitioner does not file the reply, the learned Magistrate shall proceed to decide it within three weeks as directed. The respondent No. 1 is at liberty to withdraw the amount deposited so far. The petitioner shall deposit the arrears of maintenance in pursuance of any order passed by the Magistrate on the application for interim maintenance and the challenge to the said order by the petitioner in any superior Court shall not be an excuse for him not to deposit the arrears forthwith. The respondent No. 1 is at liberty to withdraw such arrears. In case the petitioner fails to comply with the order for payment of interim maintenance, the learned Magistrate shall take appropriate steps. The payment of interim maintenance shall be a condition precedent to allow the petitioner to contest the petition further. The learned Magistrate shall dispose of the application finally within a period of four months after passing of the interim order. The petition is disposed of with aforesaid directions. Writ be sent forthwith to the Magistrate and Sessions Judge. Rule is made absolute in the aforesaid terms.